Federal court blocks city from waterlines

A federal appeals court has rebuffed a bid by Tombstone to make immediate repairs to its Huachuca Mountains water supply.

In an unsigned opinion, a three-judge panel of the 9th U.S. Circuit Court of Appeals said it would not block officials from the U.S. Forest Service from interfering with efforts by the city to bring heavy equipment into the mountains.

The judges said they were not buying the argument that actions by the Forest Service interfere with the 10th Amendment rights of the sovereignty of the state.

They also said the city had not proven it was entitled to an injunction entitling it to make what it said are emergency repairs.

Potentially more significant, the judges said the city’s contention that it is legally entitled to take water from the mountains is far from a settled issue. They pointed out that question remains before U.S. District Court Judge Frank Zapata in Tucson.

Mayor Stephen Schmidt said what happens next will have to be decided in a meeting set for later this month with attorneys from the Goldwater Institute, who pushed for the injunction.

Schmidt said that, for the time being, the city’s water supply is adequate, even with the inability to make the repairs.

He said flow is about 100 to 125gallons per minute. While that is far short of the more than 350gallons per minute that Tombstone used to get, the demand is down because it’s winter and people are not using their evaporative coolers.

And Schmidt said the city has been patching water lines to minimize leaks.

“Basically right now we’re just about even,” he said.

The lawsuit is a direct outgrowth of 2011’s Monument Fire that burned much of the Huachuca Mountains where the springs that feed Tombstone’s water supply are located. The real damage came later, according to the city, when record rains caused massive mud and rock slides.

“With no vegetation to absorb the runoff, huge mudslides forced boulders — some the size of Volkswagens — to tumble down mountainsides, crushing Tombstone’s waterlines and destroying reservoirs,” shutting off the city’s main source of water, Goldwater attorney Nick Dranias wrote to the court.

Gov. Jan Brewer declared a state of emergency to provide funds for the repairs. And the city then rented the necessary earth-moving equipment and vehicles.

The city sued after the Forest Service balked at providing the necessary permits for heavy work, with the federal agency even questioning the city’s rights to the water. With that case making its way slowly through the trial court, the city asked the trial judge and, earlier this month, the federal appeals court, for the go-ahead to start the work.

In their ruling, the appellate judges said there was no legal basis for such a court order.

“No unlawful commandeering has been shown,” the judges wrote.

“There is no evidence that Tombstone was compelled to enact any laws or regulations or to assist in the enforcement of federal statutes regulating private individuals,” they continued, both of which can be grounds for getting injunctive relief. And the judges said that, given U.S. Supreme Court precedent, they cannot accept the legal arguments Tombstone has offered.

That ownership issue the 9th Circuit said remains unresolved could prove crucial to the ultimate outcome of not just the repairs but the future of the city’s water supply.

When the village was established in 1879 it was given authority, through the Huachuca Water Co., to find a water supply. Village officials found multiple springs on public lands in the Huachuca Mountains across the San Pedro Valley.

The city now owns the water company.

City officials contend that once Tombstone started using the water it was entitled under the laws in effect at that time to keep using it.

But attorneys for the Forest Service have argued that the only way the city could get “vested rights” to water on federal lands would be with congressional authority.

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